In today's episode, we discuss a recent court case involving an individual's expectation of privacy while browsing the Internet. We begin, however, with the question so many of our listeners wanted to know: Is it legal for Ken Ham to sell his Ark Encounter theme park to his own non-profit ministry in a presumed effort to evade taxes? In our main segment, the guys break down a recent court case involving search & seizure over the internet. Do you have an expectation of privacy for the stuff you do on your computer? The answer will surprise you. Next, Yodel Mountain returns with an in-depth examination of what it means to be a "thing of value." Finally, we end with an all-new Thomas Takes the Bar Exam Question #33 about search and seizure, coincidentally enough. Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! Schedule us to appear on your show! Show Notes & Links
The relevant election law statute is 52 U.S.C. § 30121, which prohibits a foreign national from giving any "thing of value" to a candidate for public office.
On May 22, 2017, the Supreme Court decided Cooper v. Harris, formerly known as McCrory v. Harris. In this case, the Court considered a redistricting plan introduced in North Carolina after the 2010 census. Plaintiffs argued that North Carolina used the Voting Rights Act’s “Black Voting Age Population” requirements as a pretext to place more black voters in two particular U.S. House of Representatives districts in order to reduce black voters’ influence in other districts. A three-judge panel of the U.S. District Court for the Middle District of North Carolina determined that the redistricting plan was an unconstitutional racial gerrymander that violated the Fourteenth Amendment's Equal Protection Clause because race was the predominant factor motivating the new plan. -- Appellants contend the lower court decision against them erred in five critical ways: (1) presuming racial predominance from North Carolina's legitimate reliance on Supreme Court precedent; (2) applying a standard of review that required the State to demonstrate its construction of North Carolina Congressional District 1 was “actually necessary” under the VRA instead of simply showing it had “good reasons” to believe the district, as created, was needed to foreclose future vote dilution claims; (3) relieving plaintiffs of their burden to prove “race rather than politics” predominated with proof of a workable alternative plan; (4) clearly erroneous fact-finding; and (5) failing to dismiss plaintiffs' claims as being barred by claim preclusion or issue preclusion. -- By a vote of 5-3, the Supreme Court affirmed the judgment of the district court. In an opinion by Justice Kagan, the Supreme Court held that (1) North Carolina's victory in a similar state-court lawsuit does not dictate the disposition of this case or alter the applicable standard of review; (2) the district court did not err in concluding that race furnished the predominant rationale for District 1's redesign and that the state's interest in complying with the Voting Rights Act of 1965 could not justify that consideration of race; and (3) the district court also did not clearly err by finding that race predominated in the redrawing of District 12. Justice Kagan’s majority opinion was joined by Justices Thomas, Ginsburg, Breyer, and Sotomayor. Justice Thomas filed a concurring opinion. Justice Alito filed an opinion concurring in the judgment in part and dissenting in part, in which the Chief Justice and Justice Kennedy joined. Justice Gorsuch took no part in the consideration or decision of this case. -- And now, to discuss the case, we have Hans A. von Spakovsky, who is Manager, Election Law Reform Initiative and Senior Legal Fellow, The Heritage Foundation.
On June 26, 2017, the Supreme Court decided Trinity Lutheran Church of Columbia v. Comer. The Learning Center is a licensed preschool and daycare that is operated by Trinity Lutheran Church of Columbia, Inc (Trinity Lutheran). Though it incorporates religious instruction into its curriculum, the school is open to all children. The Missouri Department of Natural Resources (DNR) offers Playground Scrap Tire Surface Material Grants to organizations that qualify for resurfacing of playgrounds. Trinity Lutheran’s application for such a grant was denied under Article I, Section 7 of the Missouri Constitution, which reads “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Trinity Lutheran sued, arguing that DNR’s denial violated the Equal Protection Clause of the Fourteenth Amendment and the First Amendment’s protections of freedom of religion and speech. The district court dismissed the suit and a divided panel of the U.S. Court of Appeals for the Eighth Circuit affirmed, concluding that the First Amendment’s Free Exercise Clause did not compel the State to disregard the broader anti-establishment principle reflected in its own constitution. -- By a vote of 7-2, the United States Supreme Court reversed the judgment of the Eighth Circuit and remanded the case. In an opinion by Chief Justice Roberts, the Court held that the DNR’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status. -- Justices Kennedy, Alito, and Kagan joined the Chief Justice’s majority opinion in full, and Justices Thomas and Gorsuch joined except as to footnote 3. Justice Thomas filed an opinion concurring in part, in which Justice Gorsuch joined. Justice Gorsuch filed an opinion concurring in part, in which Justice Thomas joined. Justice Breyer filed an opinion concurring in the judgment. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined. -- And now, to discuss the case, we have David A. Cortman, who was lead counsel in Trinity Lutheran Church of Columbia v. Pauley and is Senior Counsel and Vice President of U.S. Litigation, Alliance Defending Freedom.
On May 30, 2017, the Supreme Court decided Esquivel-Quintana v. Sessions. In 2009, Juan Esquivel-Quintana, who was then 21, pleaded no-contest to a California statutory rape offense after engaging in consensual sex with a 17-year old. California criminalizes “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator,” and for this purpose considers anyone under the age of 18 to be a minor. The Department of Homeland Security then initiated removal proceedings against Esquivel-Quintana under the Immigration and Nationality Act (INA), which allows for the removal of any alien convicted of an aggravated felony, including “sexual abuse of a minor”--though it does not define that phrase. The Board of Immigration Appeals (BIA) denied Esquivel-Quintana’s appeal, concluding that the age difference between Esquivel-Quintana and the minor was sufficiently meaningful for their sexual encounter to qualify as abuse of a minor. The U.S. Court of Appeals for the Sixth Circuit, deferring to the BIA’s interpretation, denied Esquivel-Quintana’s petition for further review. -- The question before the Supreme Court was whether a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as sexual abuse of a minor under the INA. -- By a vote of 8-0, the Supreme Court reversed the judgment of the Sixth Circuit. In an opinion by Justice Thomas, the Court held that in the context of statutory rape offenses that criminalize sexual intercourse based solely on the ages of the participants, the generic federal definition of "sexual abuse of a minor" requires the age of the victim to be less than 16. Because the California statute of conviction did not fall categorically within that generic federal definition, Esquivel-Quintana’s conviction was not an aggravated felony under the INA. All other members joined in Justice Thomas’s opinion except Justice Gorsuch, who took no part in the consideration or decision of this case. -- To discuss the case, we have Vikrant Reddy, Senior Research Fellow at the Charles Koch Institute.
On June 23, 2017, the Supreme Court decided Murr v. Wisconsin. In the 1960s the Murrs purchased two adjacent lots (Lots F and E), each over an acre in size, in St. Croix County, Wisconsin. In 1994 and 1995, the parents transferred the parcels to their children and the two lots were merged pursuant to St. Croix County’s code of ordinances, with local rules then barring their separate sale or development. A decade later the Murrs sought to sell Lot E in order to fund construction work on Lot F, but the St. Croix County Board of Adjustment denied a variance from the ordinance barring separate sale or development of the lots. The Murrs sued the state and county, claiming that the ordinance effected an uncompensated taking of their property and deprived them of “all, or practically all, of the use of Lot E because the lot cannot be sold or developed as a separate lot.” The circuit court disagreed and granted summary judgment to the state and county. The Court of Appeals of Wisconsin affirmed, concluding that the Murrs took the properties with constructive knowledge of the resulting restrictions and had not suffered a loss in value of more than 10%. The Wisconsin Supreme Court denied further review. -- The question before the United States Supreme Court was whether, in a regulatory taking case, the “parcel as a whole” concept as described in Penn Central Transportation Company v. City of New York establishes a rule that two legally distinct but commonly owned contiguous parcels must be combined for takings analysis purposes. -- By a vote of 5-3, the Supreme Court affirmed the judgment of the Court of Appeals of Wisconsin. In an opinion by Justice Kennedy, the Supreme Court held that the Wisconsin court was correct to analyze the Murrs’ lots as a single unit and that no compensable taking had occurred. Justice Kennedy’s majority opinion was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts filed a dissenting opinion, in which Justices Thomas and Alito joined. Justice Thomas filed a dissenting opinion. Justice Gorsuch took no part in the consideration or decision of this case. -- To discuss the case, we have James S. Burling, who is Vice President of Litigation, Pacific Legal Foundation.
For today's show, we take a deep dive into the law of contracts, featuring the "parol evidence" rule. First, however, we answer a question from special listener Lydia S. who wants to know all about Blac Chyna, Rob Kardashian, and "revenge porn." YOU asked for it! In the main segment, Andrew and Thomas discuss what you can and can't do to dispute a written contract. Next, Garry Myers asks us about why law firms are all structured as partnerships. Again, the answer might surprise you!. Finally, we end with the answer to Thomas Take the Bar Exam Question #32 regarding 42 U.S.C. § 1983. Listen and find out if Thomas makes it back to .500! And don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: None! Have us on your show! Show Notes & Links
On November 29, 2016, the Supreme Court decided Bravo-Fernandez v. United States. A jury convicted petitioners Juan Bravo-Fernandez and Hector Martínez-Maldonado of bribery in violation of 18 U. S. C. §666 but acquitted them of conspiring to violate §666 and traveling in interstate commerce to violate §666. The jury’s verdicts were therefore irreconcilably inconsistent, and the petitioners’ convictions were later vacated on appeal because of error in the judge’s instructions unrelated to this inconsistency. On remand, Bravo and Martínez moved for judgments of acquittal on the standalone §666 charges, arguing that the issue-preclusion component of the Double Jeopardy Clause barred the Government from retrying them on those charges. The District Court denied the motions, and the First Circuit affirmed. -- The question before the Supreme Court was whether the eventual invalidation of petitioners’ §666 convictions undermined the United States v. Powell instruction that issue preclusion does not apply when the same jury returns logically inconsistent verdicts. -- By a vote of 8-0, the Supreme Court affirmed the judgment of the First Circuit. In an opinion by Justice Ginsburg, the Court held that the issue-preclusion component of the double jeopardy clause, which bars a second contest of an issue of fact or law raised and necessarily resolved by a prior judgment, does not bar the government from retrying defendants after a jury has returned irreconcilably inconsistent verdicts of conviction and acquittal and the convictions are later vacated for legal error unrelated to the inconsistency. Justice Thomas filed a concurring opinion. -- And now, to discuss the case, we have Paul Crane, who is Assistant Professor of Law at the University of Richmond School of Law.
On May 30, 2017, the Supreme Court decided Impression Products, Inc. v. Lexmark International, Inc. Lexmark International, Inc. (Lexmark), which owns many patents for its printer toner cartridges, allows customers to buy its cartridges through a “Return Program,” which is administered under a combination single-use patent and contract license. Customers purchasing cartridges through the Return Program are given a discount in exchange for agreeing to use each cartridge once before returning it to Lexmark. All of the domestically-sold cartridges at issue here and some of those sold abroad were subject to the Return Program. Impression Products, Inc. (Impression) acquired some Lexmark cartridges abroad--after a third party physically changed the cartridges to enable their re-use--in order to resell them in the United States. Lexmark then sued, alleging that Impression had infringed on Lexmark’s patents because Impression acted without authorization from Lexmark to resell and reuse the cartridges. Impression contended that its resale of the cartridges was not an infringement because Lexmark, in transferring the title by selling the cartridges initially, granted the requisite authority. The district court granted Impression’s motion to dismiss as it related to the domestically sold cartridges but denied it as to the foreign-sold cartridges. The U.S. Court of Appeals for the Federal Circuit reversed the district court’s judgment as to the domestically sold cartridges but affirmed dismissal regarding the cartridges sold abroad. -- There were two questions before the Supreme Court: (1) whether a “conditional sale” that transfers title to the patented item while specifying post-sale restrictions on the article's use or resale avoids application of the patent-exhaustion doctrine and therefore permits the enforcement of such post-sale restrictions through the patent law’s infringement remedy; and (2) whether, in light of this court’s holding in Kirtsaeng v. John Wiley & Sons, Inc. that the common-law doctrine barring restraints on alienation that is the basis of exhaustion doctrine “makes no geographical distinctions,” a sale of a patented article – authorized by the U.S. patentee – that takes place outside the United States exhausts the U.S. patent rights in that article. -- By a vote of 7-1, the Supreme Court reversed the judgment of the Federal Circuit and remanded the case. In an opinion by Chief Justice Roberts, the Court held that (1) Lexmark exhausted its patent rights in toner cartridges sold in the United States through its "Return Program"; and (2) Lexmark cannot sue Impression Products for patent infringement with respect to cartridges Lexmark sold abroad, which Impression Products acquired from purchasers and imported into the United States, because an authorized sale outside the United States, just as one within the United States, exhausts all rights under the Patent Act. The Chief Justice’s majority opinion was joined by Justices Kennedy, Thomas, Breyer, Alito, Sotomayor, and Kagan. Justice Ginsburg filed an opinion concurring in part and dissenting in part. Justice Gorsuch took no part in the consideration or decision of the case. -- And now, to discuss the case, we have Adam Mossoff, who is Professor of Law and Co-Director of Academic Programs and Senior Scholar of CPIP, Antonin Scalia Law School, George Mason University.
On June 12, 2017, the Supreme Court decided Microsoft Corp. v. Baker. Plaintiffs brought a class action lawsuit against Microsoft Corporation (Microsoft) alleging that, during gameplay on the Xbox 360 video game console, discs would come loose and get scratched by the internal components of the console, sustaining damage that then rendered them unplayable. The district court, deferring to an earlier denial of class certification entered by another district court dealing with a similar putative class, entered a stipulated dismissal and order striking class allegations. Despite the dismissal being the product of a stipulation--that is, an agreement by the parties--the U.S. Court of Appeals for the Ninth Circuit determined that the parties remained sufficiently adverse for the dismissal to constitute a final appealable order. The Ninth Circuit, therefore, concluded it had appellate jurisdiction over the case. Reaching the merits, that Court held that the district court had abused its discretion, and therefore reversed the stipulated dismissal and order striking class allegations, and remanded the case. -- The question before the Supreme Court was whether a federal court of appeals has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice. -- By a vote of 8-0, the Court reversed the decision of the Ninth Circuit and remanded the case. In an opinion by Justice Ginsburg, the Court held that Federal courts of appeals lack jurisdiction under 28 U. S. C. §1291 to review an order denying class certification (or, as in this case, an order striking class allegations) after the named plaintiffs have voluntarily dismissed their claims with prejudice. Justice Ginsburg’s majority opinion was joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. Justice Thomas filed an opinion concurring in the judgment, in which the Chief Justice and Justice Alito joined. Justice Gorsuch took no part in the consideration or decision of the case. -- To discuss the case, we have Theodore H. Frank, who is Senior Attorney and Director of the Center for Class Action Fairness at the Competitive Enterprise Institute.
In today's episode, we discuss the recent controversy over Donald Trump, Jr.'s contact with Russian officials during the 2016 election. We begin, however, with a follow-up from Dave (and others) who asked us about doxxing. In our main segment, the guys break the law of conspiracy to discuss whether Donald Trump Jr.'s conduct is potentially criminal. (Spoiler: Yes.) Next, fan favorite segment "Are You A Cop?" returns with a question about taxation without representation. Finally, we end with an all-new Thomas Takes the Bar Exam Question #32 about Section 1983 claims and acting under "color of law." Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! But you can come join the guys at the Inciting Incident 100th Episode Live Spectacular in Carlisle, PA on July 14, 2017! Get your tickets now! Show Notes & Links
